VORTRAGSREIHE. Donnerstag, 26. Oktober 2017 / 18:30 Uhr

Transcription

1 VORTRAGSREIHE Donnerstag, 26. Oktober 2017 / 18:30 Uhr European Union influence on Swedish labour law (with special regards to the Temporary Agency Directive) Referent: Frau Professor Dr. Birgitta Nyström (Universität Lund, Schweden) ZAAR Destouchesstraße München Tel Fax info@zaar.uni-muenchen.de

2 The Swedish Model three main features The social partners (trade unions and employers organisations) have a strong position The Swedish State has traditionally been in the background Collective agreements are important for regulating the labour market the Social Partners Strong and well organised on both sides Trade union membership rate is (still) very high (70%) The employers organisation rate is very high The relationship between the parties is built on mutual trust and responsibility (Saltsjöbaden Agreement 1938, Industrial Agreement 1997) Large and centralised organisations 1

3 Collective Bargaining and Collective Agreements Collective agreements cover almost all employees (90%) The parties to the agreement in the first instance the trade unions are responsible for controlling compliance Negotiations between the parties is a central element The employees rights of information and consultation are exercised through the unions (established trade union = party to the collective agreement) The right to take collective action is rather wide in an international perspective (sympathy/secondary action) Labour Legislation Very limited until the 1970s Legislative explosion during the 1970s Became more extensive after EU membership 1995 Often possible to agree on something else in a collective agreement (semi compulsory legislation) Overall aim is that legislation shall apply to all employees in the same way (white-/blue collar, state, private) 2

4 Other Main Features of the Model The employers managerial prerogative (accepted 1906) The employer applies the collective agreement also to unorganised employees and employees belonging to trade unions without collective agreement Weak constitutional protection of labour rights What Does the Model not Have? Minimum wage legislation A proportionality principle applicable to collective action The possibility to declare collective agreements universaly applicable (no erga omnes-effect) State authorites controlling that labour law is followed (except traditionally work environment Labour Inspectorate) 3

5 Problems meeting EU law Implementation of EU law should be done by legislation New phenomenons introduced by EU law requires control by State authorities (free movement) The transfer of undertakings Directive introduces a new principle when it comes to the change of parties to the employment contract problems. Anti-discrimination legislation individual rights Detailed legislation (the working time Directive) Legal activism from the Court of the EU The Posting of Workers Directive and the Laval-case 4

6 Traditional Swedish model for combating social dumping The trade union invites the employer to negotiate The trade union asks the employer to sign the collective agreement The trade union gives notice of industrial action Industrial action Sympathy actions The PWD and the Laval-case The most highlighted and controversial situation where the Swedish labour market system have been challenged by EU law Only core employment conditions Minimum levels, including wages Collective action restricted 5

7 Implementation of the Agency Work Directive Temporary work agencies illegal in Sweden until a new Act entered into force 1992 Some restrictions during 1992 (need, timelimits, restricted fixed-term) From 1993 no restrictions at all Collective agreements for the sector since the 1980s! Today about 1,5 % of the labour force temporary agency work. Today collective agreements cover about 92 % (low rate of unionisation) Treated like any other business Treated like any other employee all labour legislation applies (and social security law) 6

8 temporary agency work. The employment contract is between the temporary agency and the employee The contract between the agency and the user is a contract under ordinary contractual and business law, and there is no contractual relationship between the user and the temporary employee temporary agency work.. Relationship temporary employee - user employer managerial authority good labour market practice user responsible for safety and work environment on the work-place (Directive 91/383/EC) user responsible for non-discrimination on the work-place 7

9 temporary agency work. Implementation of the Directive with the least possible interference with the Swedish model: New Act on Hiring Out of Employees ( staffing ) Applies to all kinds of employees and to the whole labour market Equal treatment from the first day (basic working and employment conditions at least that would apply if recruited directly by the user undertaking to occupy the same job) temporary agency work. Exceptions from the equal treatment principle: Pay if there is a permanent employment contract and the employee is paid between assignements Collective agreements (92 % coverage) 8

10 temporary agency work Information about vacant posts in the user undertaking Prohibition on preventing the conclusion of an employment relationship between the user and the temporary agency employee (not new) Prohibition to charge agency workers any fee in exchange for recruitment by a user (not new) Access for the agency workers to amenities in the user undertaking Most important change following implementation of the Directive The relationship between the Posting of Workers Directive and the Agency Work Directive? Posted agency workers can claim equal treatment within the hard core of the Posting of Workers Directive This means among other working conditions: equal pay 9

11 Restrictions or prohibitions(article 4.1) Removed - an employee who starts to work for an agency must not be hired out to the former employer within 6 months Justified on the ground that the labour market functions properly - the trade union veto Still restrictions in collective agreements Collective agreements in the temporary agency sector Three largest and most important: bluecollar, white collar, health-care Wage guarantees normally % Working conditions especially applicable to temporary agency work, for example: when can the employee refuse 10

12 Opinions from the parties: Trade unions traditionally negative (not professional employees), especially the Swedish Trade Union Confederation (LO) LO still wants some restrictions regarding lenght of hiring and a special need Controversial when an employer dismiss because of redundancy and then hires in agency workers Conclusion: Swedish trade unions are pragmatic Collective agreements in the temporary work agency sector shows that the social partners are able to combine flexibility and security 11